Judicial Discrimination in Favor of the More Religious Parent

From Tilley v. Gibbs, decided yesterday by the Mississippi Court of Appeals:

John and Tiffany were married on April 6, 2019, in Lowndes County, Mississippi. The parties had one child, V.G., born prior to the marriage on December 19, 2018. On December 14, 2021, John filed his original complaint for divorce against Tiffany…. On September 16, 2022, the chancery court issued its opinion and final judgment, granting an irreconcilable differences divorce, awarding joint legal custody with John being awarded physical custody. The court awarded Tiffany visitation and ordered her to pay child support of $490.00 per month….

The court went through the various factors that Mississippi courts consider in child custody cases; but I thought this was particularly noteworthy:

Tiffany also asserts that the home, school, and community records should have been deemed a neutral factor because the chancellor relied on two issues she believes do not favor either party—John's church attendance and her potential move. In support of her position on appeal, she highlights only a portion of the relevant evidence submitted at trial, including that they did not go to church often while married, John only began attending church more regularly after the separation, and John previously indicated to her that he was an atheist. She further argued that her admitted plan to relocate should not be held against her because the specifics of it require speculation at this juncture.

In evaluating part of this factor, our "supreme court has affirmed that a chancellor may consider the issue of religion when determining custody." Davidson v. Coit (Miss. Ct. App. 2005) (quoting Weigand v. Houghton (Miss. 1999)). Evidence has previously been considered to weigh in favor of a parent, such as "a father[,] who took his child to church." Montgomery v. Montgomery (Miss. Ct. App. 2009) (citing Pacheco v. Pacheco (Miss. Ct. App. 2000))…

After reviewing the evidence as a whole, the chancellor noted that John has been taking V.G. to the same church for years and that Tiffany stated she "does not attend church now, as I don't feel it is required." Further, this was not the only basis for the chancellor's ultimate ruling on this factor, as he also concluded that John plans to remain near V.G.'s family and friends while Tiffany plans to move to a different state were persuasive. We find sufficient evidence was presented to support the chancellor's decision to weigh this factor in John's favor.

Such consideration of the parties' churchgoing strikes me as a violation of the First Amendment, for reasons I discussed in this article. Perhaps the custody decision in John's favor was sound for other reasons; but I don't think the question of which parent is the more religious—or the more regular church attendee—can be a permissible factor here. To quote Bonjour v. Bonjour (Alaska 1979), which strikes me as taking the correct approach (and indeed one that remains correct despite the changes in Establishment Clause doctrine since),

According a preference in child custody proceedings to parents who are members of an "organized religious community" violates that strict neutrality which the branches of government, including the judiciary, must assume in considering religious factors.

To be sure, a parent's religion might sometimes be relevant in light of the other custody factors, such as a mature child's preferences:

A child's religious needs or preferences may enter into the custody equation in a variety of different ways. For instance, if a court determines that a fifteen-year-old child is a devout adherent to a particular religion or is otherwise deeply religious and that one parent will provide the child greater freedom in his or her pursuit of religious enlightenment, then the court may consider this as a factor in awarding custody. In order to avoid running afoul of the establishment clause, however, the statute cannot be limited to consideration of the formal religious needs of the child. A fifteen-year-old child might conceivably have developed a profound aversion to formal religious training of any sort. If a court finds this to be the case, then in awarding custody, the court may take into account the fact that one parent has shown a greater willingness to respect the child's opposition to formal religion.

The primary goal of the court in awarding custody is to further the best interests of the child, which includes respecting the beliefs of a mature child, whether they be religious or non-religious. So long as a court makes findings as to a child's actual needs respecting religion, the court may consider such needs, as one factor, in awarding custody.  In such consideration, the court, however, may not substitute its own preferences, either for or against a particular type of religious observance, but must retain a strict neutrality.

But neither this nor any other factor—other than the judiciary's mere preference for churchgoing over non-churchgoing—seems applicable here. [UPDATE: I originally wrote "judge's mere preference" here, but on reflection (with thanks to commenter QuantumBoxCat) I realize this suggests the error is this particular judge's; I'm referring here to what the Mississippi legal system is doing more broadly, so I've changed this to "judiciary's mere preference."]

Comments

[Magister]

I expect Mississippi courts would differ for a satanic-coven-going parent versus a non-religious parent.

[Sam Bankman-Fried]

Hmmm, I wonder who put you up to making that comment?? Let’s think real hard about who wants more Satanists?? Hmmmm…could it be, Satan??

[Rev. Arthur L. Kirkland]

Mississippi is always different. Ignorance, bigotry, and chronic failure have consequences.

Including Republican registrations.

[ReaderY]

The Free Exercise Clause protects the free exercise of religion. This includes a right to pass on religion to children sufficient to override state interests, as found in Yoder v. Wisconsin, which Smith indicated was still good law (religion plus).

But atheists have no coresponding rights. The reality is, the constitution itself treats religion and non-religion differently.

Moreover, just as government can find that non-obsene porn has negative secondary effects, it can find that church-going has positive secondary effects separate from the particular content and viewpoint.

[Sam Bankman-Fried]

That’s why atheists should just say they are religious to get those sweet sweet 1A rights!! Also, buy a gun, do it!!

[Voize]

But atheists have no coresponding rights

Reader, can you explain your reasoning? By analogy to freedom of speech which includes freedom not to speak, freedom of religion should include freedom of irreligion.
The Supreme Court agreed, holding that the

First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.

(McCreary County v. ACLU, 545 U.S. 844 (2005), quoting Epperson v. Arkansas (1968).

[ReaderY]

They don’t have Free Exercise rights.

[Voize]

There is precedent that they do.
Also from McCreary:

the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause

The 7th Circuit has applied McCreary to Free Exercise in Kaufman v. McCaughtry, 419 F. 3d 678 (7th Cir. 2005), saying

Atheism is, among other things, a school of thought that takes a position on religion, the existence and importance of a supreme being, and a code of ethics. As such, we are satisfied that it qualifies as Kaufman's religion for purposes of the First Amendment [Free Exercise] claims he is attempting to raise.

[ReaderY]

Let’s look at Yoder. Religious parents are potentially exempt from public school requirements. Non-religious parents aren’t. That’s clearly a concrete difference.

Yoder suggests that religious parents’ right to raise their children IN THEIR RELIGION means that religious parents have more rights against the state with respect to the raising of their children than general parents, rights which sometimes override states’ powers to determine what’s best for children.

If this case had been decided on constitutional grounds, which it wasn’t, John is potentially asserting the right to raise his child in his religion, religion plus. Tiffany is asserting the right to raise her child, the plus and nothing more.

[Bill Poser]

It seems to me that a neutral principle underlies the apparent asymmetry:

Parents who disagree with the religious content of public schools are entitled to provide their children with an alternative form of education (provided that it satisifies other valid governmental interests).

This principle is neutral in that it allows religious parents to keep their children out of non-religious public schools and allows non-religious parents to keep their children out of religious pubic schools. The latter case happens not to arise because religious public schools violate the Establishment Clause. It is this that creates the apparent asymmetry. We can see this by considering a hypothetical alternative Constitution which provides similar guarantees of religious freedom to the extant Constitution but establishes a certain church (as do, e.g., some European countries).

[Voize]

Non-religious parents aren’t.

Yoder doesn't mention non-religious parents or the rights they don't have.
A finding that atheist parents have a Free Exercise right to raise their children as atheists would be consistent with both Yoder and McCreary/Kaufman.

[bernard11]

The Free Exercise Clause protects the free exercise of religion. This includes a right to pass on religion to children sufficient to override state interests, as found in Yoder v. Wisconsin, which Smith indicated was still good law (religion plus).

But that's not the issue here. The claim is not that it's a problem that John is taking V.G. to church. It is rather that he shouldn't score bonus points for doing so.

But atheists have no corresponding rights.

Of course they do. Wouldn't it be fair to say that the Establishment Clause grants them precisely those "corresponding rights?"

Why isn't privileging a religious parent a clear violation of the Establishment Clause?

[JoeFromtheBronx]

Torasco v. Watkins underlines that "religion" is not the same as belief in a god. Atheists can have a "religion."

For instance, Unitarian-Universalists can be atheists. Various lower courts dealt with this issue, talking about the "ultimate cause" in life and so on.

The free exercise of religion also generally includes making choices about religion. An atheist, for instance, has a right not to be coerced into practicing religion. This includes the right to raise their children free from traditional religious beliefs.

[ReaderY]

That case addressed the Religious Test for Public Office clause.

[JoeFromtheBronx]

Okay. I'm not sure what the relevance of that is for the immediate purposes.

[Rev. Arthur L. Kirkland]

Choose reason. Every time.

Choose reason. Every time. Especially over sacred ignorance, dogmatic intolerance, or childish superstition.

Choose reason. Every time. Most especially if you are older than 12 or so. By then, childhood indoctrination and substandard parents fade as excuses for ignorance, backwardness, bigotry, superstition, and gullibility. By adulthood -- this includes ostensible adulthood -- it is no excuse, not even in Mississippi or a similar half-educated, can't-keep-up backwater.

Choose reason. Every time. And education, modernity, inclusiveness, science, progress, and freedom. Avoid superstition, ignorance, backwardness, bigotry, dogma, insularity, authoritarianism, and pining for "good old days" that never existed. Not 75 years ago. Not 175 years ago. Especially not 2.000 years ago, except in silly fairy tales suitable solely for young children and especially gullible adolescents.

Recognize that competent adults neither advance nor accept supernatural arguments in reasoned debate, especially in the contexts of public affairs and legitimate education. Don't offer or rely on "just because" as an answer.

Choose reason. Every time. Be an adult.

Or, at least, please try.

Otherwise, you are likely to become an obsolete, credulous culture war casualty, as dumb and worthless as a Mississippi judge.

[Roger S]

I understand the objection to child custody courts considering religion, but those courts routinely consider dozens of other less important and less justiciable factors.

[Noscitur a sociis]

How many of them are factors that the constitution prohibits them from considering?

[Roger S]

The Constitution says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"

It is a stretch to say that this prohibits a judge from considering church attendance. What is it -- Congress respecting an establishment?

I am all in favor of limiting the discretion of these child custody judges, I just don't see why they can consider everything except religion.

[Dr. Ed 2]

I view this in a different way -- the church attendance when combined with NOT moving provides the child a more stable home environment.

That it isn't the church qua church as much as it is church as predictable and consistent social activity -- it could instead be something like NASCAR, which actually is quite child/family friendly in places like Mississippi. (No, they don't let the children drive...)

[QuantumBoxCat]

I'm not sure how there was "judicial discrimination" or a "judge's mere preference for churchgoing over non-churchgoing" in this case. In the linked opinion, the MS Court of Appeals cites to Davidson v. Coit (Miss. Ct. App. 2005), in which the Court writes:

Davidson also argues that the chancellor erroneously placed undue weight on church attendance. For over a century, our courts have considered a parent's involvement in the "moral and religious training" to determine custody. Randall v. Randall, 28 So. 19, 20 (Miss. 1900). More recently, the supreme court has affirmed that a chancellor may consider the issue of religion when determining custody. Weigand v. Houghton, 730 So. 2d 581, 587(¶ 23) (Miss.1999). In Weigand, the chancellor considered the issue of religious training towards the development of a child. Id. The chancellor determined that the child's best interests would be served by attending church. Id. Because the mother took the child to church, the chancellor weighed the moral fitness factor heavily in her favor. Id. In this case, the record shows that Coit regularly takes the children to church. Thus, there was evidence to support the chancellor's decision to weigh the moral fitness factor in his favor.

....

In Blevins v. Bardwell, 784 So. 2d 166 (Miss.2001), the Mississippi Supreme Court once again approved a chancellor's consideration of religious training in child custody proceedings. In Blevins, the court explained that "future religious example" is not a factor listed in Albright, although it could theoretically fall within "other factors relevant to the parent-child relationship" or under "moral fitness of the parents" as found in Albright. Blevins, 784 So.2d at 175(¶ 34). Citing McLemore, the court found that the chancellor did not abuse her discretion when considering future religious example in the custody determination of the child.

It seems that the Chancellor in this case was following the law as dictated by the state's Supreme Court and Court of Appeals, which found "moral and religious training" to be a relevant factor when deciding custody cases. If anything, it appear to be the law of Mississippi that "discriminates" in favor of the more religious parent.

[QuantumBoxCat]

Furthermore, in the Bonjour case that Eugene cites as taking the "correct approach", the Alaska Supreme Court upheld the state custody law being challenged. The Court wrote: "Aside from these rather clear-cut propositions, we think it constitutionally permissible for a court to take account of the actual religious needs of a child in awarding custody to one parent or another. AS 09.55.205, insofar as it permits a court to consider the "religious needs" of a minor as an aspect of the child's "best interests," does not infringe upon constitutionally protected rights."

The issue the Court took in that case was the application of the law by the trial judge to the facts of the case. More specifically, the trial judge did not make a finding of fact related to the child's religious needs that supported the judge's related conclusion. Expanding Eugene's quote, the Court wrote:

Consideration of religion in child custody cases, properly limited to an examination of a child's actual religious needs, can further a secular purpose. The legislature's intent in passing AS 09.55.205 was to assure that the award of custody was in furtherance of the best interests of the child, a secular purpose. If the child should have religious needs, the court's consideration of such needs in awarding custody would still serve a secular, as opposed to a religious, purpose. A court certainly may attempt to accommodate a child in exercising its religious beliefs and in fulfilling its actual religious needs. To hold otherwise would be to sanction an unwarranted hostility toward religion and religious beliefs. See Walz v. Tax Commission, 397 U.S. 664, 672, 90 S.Ct. 1409, 1413, 25 L.Ed.2d 697, 703 (1970); Zorach v. Clauson, 343 U.S. 306, 313-14, 72 S.Ct. 679, 683-684, 96 L.Ed. 954, 962 (1952). Thus, the statute itself does not violate the purpose prong in allowing a court to consider the religious needs of a child.

Here, however, the trial court made no finding that the child, Michael Bonjour, had any religious needs. In the absence of a finding of religious needs in fact, a presumption that a child "needs religion" converts the secular legislative purpose into a judicial preference for religion. According a preference in child custody proceedings to parents who are members of an "organized religious community" violates that strict neutrality which the branches of government, including the judiciary, must assume in considering religious factors. Thus, in this case, the court applied AS 09.55.205 in a manner violative of the first amendment's establishment clause, for it exhibits a preference for the religious over the less religious.

[iowantwo]

Routine and consistent values are important.
Kids LOVE Sunday School and the positive reinforcement. They love the attention, from all the members. Church members dote children make them feel special.
Church is an extended family. Something the child can be exposed to 2 to 4 times a week, depending on how active the family wants to be.

Those are just a few specific benefits of having Church in the childs life.

Unless the other parents had a plan that could match that, its a no brainer.

[Sarcastr0]

It's gonna depend on the kid, chief.

[iowantwo]

NO SHIT.
Did you spend a lot money on college to reach the bit of wisdom?

You probably have the super power where you can predict how 5 year olds are going to turn out.

[Absaroka]

"Kids LOVE Sunday School"

Some may, but I didn't.

[Sam Bankman-Fried]

I liked it when they taught about the adulteress wife…skank.

[bernard11]

The trouble is, this describes lots of non-religious activities.

Kids may love Little League, or their art classes, or theater, just as well.

The issue here is assigning special status to some categories of activities that is not assigned to others, based on the redneck judge's idea of superior activity.

[iowantwo]

I said its a good routine, it is consistent, there is lots attention given to kids
All the "activities" are just that activities.
The Judge did not assign a special status. He acknowledged church had value.

Raising our kids we encouraged all the extra curricular stuff. But we worked to have at least one of two activities, that were not sports, and were not attached to the school. Church, scouting, 4H

[tkamenick]

I don't think they are assigning any special status to it. There's no indication this would be different than any "parent A will continue taking child to regular community/activity X, parent B says they won't" analysis. In fact, it would violate the free exercise clause to discriminate against religious parents and say courts CAN'T consider regular church attendance (if it's considering similar non-religious continuation-of-routine factors).

[Rev. Arthur L. Kirkland]

Gullible and dumber kids, maybe

[SRG2]

a few specific benefits of having Church in the childs life.

e.g., as reported in this story: https://www.wral.com/story/sunday-school-teacher-found-guilty-raping-girls-benson-church-sentenced-87-years/20439155/

[iowantwo]

SRG 2

That's the very worst you can produce, it proves my point. I cant think of any cultural segment of society that doesn't have perves lurking about.

[bernard11]

Bonjour v. Bonjour (Alaska 1979)

OT, but may I suggest that this is one one of the most appropriate names for a religion case I can imagine.

[Paul McKaskle]

There was a California case, Quiner v. Quiner, 59 Cal.Rptr. 503 (1967), in which the trial court refused to give custody to the mother who belonged to a religious sect (the Exclusive Brethren) in which voluntary association with non-members of the sect or any activities outside the family were strictly forbidden. This meant, according to the trial court, that the child, inter alia, could not attend movies, have school friends outside the sect, engage in school athletics or even have a record player. The Court of Appeals, in a 2-1 decision, reversed and awarded custody to the mother on the grounds that her religion should not be a factor in awarding custody. The California Supreme Court granted a hearing on the case on its own motion. This is an extremely rare occurrence in California, but it had the effect of vacating the Court of Appeals opinion so that it cannot be cited as precedent. According to the attorney for the mother, after the hearing was granted the Clerk of the Supreme Court contacted both him and opposing counsel on several occasions and said the Chief Justice (Roger Traynor at the time) “wanted the case settled.” The parties did settle shortly thereafter and the further review in the Supreme Court was dismissed. (That did not restore the Court of Appeals opinion, however. Once it was vacated it was no longer precedent.)

[John F. Carr]

I see this like various factors used to judge insurance risk that are correlated with risk but do not cause it. In some times and places young married men paid less for car insurance than young unmarried men. The kind of man who settles down is less likely to make a claim. The kind of man who goes to church every Sunday might provide a better home environment.

My state has banned sex discrimination in car insurance even when it is defensible as a business decision.

[NellieBly]

I rarely -- or perhaps never -- considered whether a government, through its judicial system, could violate the First Amendment by favoring an award of custody to a church-going parent rather than a non-attending spouse.
Opens up a whole new realm of things to worry about. Thanks!

[Krenn]

Well of course the judge took notice of church attendance. He has to do that.

While the parents were together, they implicitly agreed that the child would benefit from both religious education and religious friendships with children his own age. This is a perfectly normal and healthy thing for parents to agree on when it comes to planning out how best to raise the child.

Now that the parents are splitting up.... the child still needs to finish being raised, and by the two parent's own past behavior, the last agreement previously in force between them was that their child 'being raised' would include some level of religious attendance for raising purposes.

The person stuck with ENFORCING that agreement in the best INTERESTS of the child is now THE JUDGE.... so of COURSE the Judge has to ask "which of these parents will ACTUALLY TAKE THE BOY TO CHURCH?"

If one of the parents wants to remain an atheist/agnostic who just happens to drive their child to church a lot and continue providing useful guidance about how to interact with other humans in a religious settings whenever their child needs to hear it, I guess that would be ok, but it doesn't sound like that was one of the options which was on the table.